tv Lynch v. Dimaya Oral Argument CSPAN January 27, 2017 2:43pm-3:45pm EST
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heard oral argument in lynch vdimaya. deciding if a crime of violence as used in deportation sections of immigration law is vague. this is just under an hour. >> we will hear case 151495. under kneedler. >> the definition of crime of violence in 16 b is unconstitutionally vague on its face relying on this court's decision in johnson holding the residual clause in the armed career criminal act unconstitutional unconstitutionally vague. that was wrong for two reasons. it is not the same as a criminal proceeding because the constitution does not require prior notice that conduct will give rise it removal and also because immigration laws have
long been administered by the executive in administrative proceedings because under broad delegations of authority because of the closeness with security. under the criminal vagueness standard applied in johnson 16b is not unconstitutional. as sem plifide by this court's unanimous decision and in the more than 30 years that 16b has been on the books -- >> didn't the government argue when johnson was before us, that if the residual cla residual cl invalid then it would be vulnerable because of the same central objection. is that the government's argument? >> the out was responding to the argument that was made in johnson which was broader than court e the court's rational. a risk was thought to be a
problem, the court made clear in johnson, references to substantial risk or not and inherently problematic and there are many such ones. the court focused its analcy on two different aspect. but they have featured that that 16 b have and that's the reason why 16b hasn't given rise to the interpretive confusion that finally led this court in johnson to hold the aca provision unconstitutional. >> i thought the john sop features at issue were the fact we were asking courts to imagine what the ordinary crime was and there was no way to even think about what that was. your adversary point out, if the ordinary crime is during the day, there is one level of risk. if it is at night, there is another level of risk.
the nature of the entry is at question. whether it is forceable or merely walking through an open door uninvited. it may be easier for burglary for lots of reasons but they are the level of what constitutes an ordinary crime is somewhat at the center of johnson. why isn't it at center here? >> because there are several very important distinctions between this case and johnson with respect to thap. the residual clause spoke in terms after serious potential risk. that serious injury to another person might result. that created uncertainty about things that could happen even after the offense was committed and an injury to people bystanders or anyone else that could be. section 16b is very different under that respect. asking whether a fence by its nature present a substantial
risk that physically force will be used against the person or property of another. and that's very different in several respects. it confines the aa analysis in both the temporal to the elements of offense. you don't look at what might have happened afterward. it focuses narrowly on the elements of the offense because the question is whether the use of physical force might be used in the course of committing that offense. >> might i ask, because this aspect of your brief was a bit confusing to me just because sometimes you are talking about temporal and sometimes you are talking about functional, and i want to know what you think the real limitation is. so take the example that you used which is the possession of a shotgun example. right? and you say that that would fall out of section 16. why? you are possessing a shotgun when you shoot somebody. you can't do it any other way.
so the temporal analysis zpt work. what is it about that example that makes it fall outside of the section where as you argue it would have fallen inside of aca? >> well, first of all, that's part of the confusion. >> there would not be confusion under section 16. >> i think again because of the courts have had no problem concluding that itas not covered in the reason is that -- excuse me, 16b requirees a risk of the use of physical force, an act of vie leaolent crime as th court described it and in possession of a sawed off shotgun at any particular moment in time, it doesn't have to culminate in its use at all. >> that's true. it could culminate in its use
but didn't have to culminate inity use. then you take a case like burglary and you could say the same thing about burglary. someone could walk in onbu burglary and there would be a use of force. but a burglary could happen in such way no one would walk in and there is no use of force. it seems as though we are replicating the same kind of confusions and there is nothing that separates the two. or least i'm trying to find out what you think. >> i don't think so. another important touch to a point in 16b is whether the offense by its nature presents a substantial risk. bity nature means in its natural ordinary since. and the court said in no ordinary sense could dui be regarded as affirmative use of physical force. it is not a violent crime. >> i was very struck by that language too. i think is more half language more than the other language you
point to inity bri its brief the is distinction between 16b and act of residual claws. on the other hand, it seems to suggest an elements focus. look at elements and ask, given those elements, given the nature of the offense, what is going to happen. but the elements section of 16a, it can't be all about elements. what is that, by its nature, doing? >> by its nature, the offense which would incorporate its own. we think elements are central to a and b. a involves the actual use of force or threatened use of force or attempted use of force. the element is the actual or threatened use of force. where as under 16b, the question is whether the elements add up to an offense in which there is a risk of force being used even if it doesn't have to. and burglary is a classic
example of it is a classic example of that. and i think that -- >> why is it also possession after shotgun a classic example of that? >> let me explain if i may. burglary is extended from the common law andi its rational is precisely because of the risk that the burglar will encounter someone in the course of committing the burglary. it is logical built into inherent in the crime of burglary. that there may be a response of an uninvited entry into a home bity natu by its nature, that create the risk that force is the same and the same is true of -- >> give mae contrast and by contrast, what? that fell under the acca residual clause would not fall under 16b because the same thing could not be said. >> well, i mean, one that did not fall under the acca --
>> no, give me one that would fall under the acca residual claws or whether there was confusion as to whether it fell under. >> this is a good example and precisely the crime involved where the court had no trouble in two-page decision. because of the difference and because there has to be a risk of the use of force which is not the accidental or sort of negligent conduct where as the court struggled with how to deal with that under the residual clause. it created an architectural limitation and in order to weed out. before accidental offenses where as the explicit text of the 16b itself takes care of the problem. that is an important difference and another important difference.
and the residual is for enumerated offenses which are not consistent with each other. >> you're quite right that's one of the arguments in johnson that makes it confusing. it does seem odd before we look at johnson, and it is counter intuitive. >> that the way the johnson -- >> and the fact they are conflicted examples. and into the acca residual clause in its applications and effectively, and an ingredient that made it consistent of application. that's not true here. >> and so it is absolutely right that the court in johnson said that those examples compounded the problem.
i'm just going to ask you the question that the court asked in johnson and how do we answer this question? this is what the court said in johnson. how does one go about deciding what kind of conduct the ordinary case of a crime involved. a statistical analysis of the state reporter, a survey, expert evidence, google, gut instinct. that's a multiple choice test. what do we do? because that is still the same under this statute. >> i think it's not the same. unlike in the acca residual clause you start out by looking at amounts of the offense, and are the elements of the offense such that by their nature they give rise to a substantial risk of injury. now for some offenses, i think can you look at the long history of the offense and burglary is
an example and this court said that burglary is a classic example after crime of violence and that in fact the senate report on this provision says that burglary is the classic example and if one looks at la fave or other misser to cal materials, and this statute concerns risk to property, and so i think the -- >> can i give you another example just to test how this test works? you say you look to the elements of the offense to see if they give rise to a risk of injury. do i have that right? >> yes. >> how do we do vehicular flight under that example? i'm just sort of trying to ground this. you might be right. i'm just trying to figure out what difference is if we look at it that way. that doesn't sound so different from what we were trying to do in acca. sounds kind of the same as, honestly.
so ehivehicular flight, how doe that work? >> a police officer after being ordered to stop, if you think by its nature, what is the legislature envisioning when enacted that. i think again it is parallel to burglary. the conduct is such that in the course of committing the offense and course of the flight and not something that might be collateral or down the road, is the -- >> that would fall on the included side. i thought that your brief said something different. but maybe i misread it. >> it may depend on the element of the state statute. one can't give an across the board answer to any one label for a type of offense without looking at the elements. but for example, in vehicular flight or any stature, the state might have what shows the more aggravated version and single out because of the particular risk. so it is important to look at state statute and what was it
driving at? what are the elements? what harms was it -- >> and go back it possession of a shotgun. i'm running over in my mind the memory of johnson oral argument where basically the sgs office made exactly this argument about possession aftof a shotgun. about how the elements of that offense are understood to give rise itto a significant level o risk. >> i think one of the concerns can mentioned in johnson is what if the shotgun might be used way down the road remotely from any remote in time, from any moment in time, when the person was arrested possessing the shotgun. >> and presumably the person was possessing the shotgun when the person killed somebody. it is temporally that i don't think thatting argument works. >> the intent is for the entir
duration but that's not enough. >> i remember the government arguing in johnson that most people who are found with sawed off shotguns are committing crimes. why isn't that a sub stan bl ri -- substantial risk of force being used? if statistically, and i don't remember the statistics now, but they were very clear then, that a huge amount, number of the crimes of possession aftof a shotgun led to criminal activity. >> it is necessary for the united states of force necessary for the crime with a shotgun -- >> use of force is not necessary for the burglary. if you walk in and there is nobody there, you take what you find. >> but the historical understanding of burglary is precisely that it will -- that it will -- >> so now we are going back to
gut instinct? >> no. i think it is anything but. a court looks at the interpretations of the statute and analysis of what the state legislature was driving at, state judicial decisions that might themselves describe what the risk is or risk addressed by the offense and so it is a legal question. the judge aexperience, however, is something like burglary can be quite informative. >> before your white light goes on, can you address your first argument that the vagueness standard is different here than in john sop? >> yes.s sop? >> yes.o sop? >> yes.n sop? >> yes.sop? >> yes.? >> yes. i might say, jordan versus george, a case a few years ago, is it more pervasive than i would have thought for the respondent here. could you say it is -- because
they didn't need to reach the issue based on their holding. >> i think there are a number of things to be said. the issue is not addressed. the court applied what seemed to be the same standard but it wasn't briefed. and so the question of how it would apply in that setting wasn't addressed. also -- >> you have to be briefed before we say it is the law? >> the court often tsh -- if the court has what is referred to as drive by ruling, i wouldn't say drive-by.-- if the court has what is referred to as drive by ruling, i wouldn't say drive-by. usually you want adversarial representation by parties. this did not discuss the mallard case in which the court indicated there would be a looser standard of vagueness in immigration cases specifically pointing out a critical difference. that is that the ex post facto clause does not apply to immigration. therefore a person can be
removed for conduct that was not a basis for removal before you engag engaged in that conduct, criminal or not. therefore, the notice piece of the vagueness standard really doesn't fit well in the immigration context. >> that observation was at a time before the draconian effects of removal and deportation came into effect. we now have lifetime bars with limb litted circumstances that posed previously. we have many more criminal sanctions with har ewhat /* wit harsher sentences now. i think more than anything we have often said that vagueness depend on the dwrfity of what is at stake. today what is at stake is a lot more than what was at stake decades ago. >> but what is at stake can't be viewed from just that perspective. what is at stake is that
immigration laws are vital to the nation's national security and foreign relations and safety and welfare of the country. >> an it always the fail safe that attorney general and his or her discretion can he can niden can deny anyone the right it stay here. but if he wewe are going to ask immigration judges to impose the co consequences that they do today, don't we need something arbitrary? >> if i can address several pieces of that, while there are more criminal offenses now that give rise to removal, same basic point obtaines. which is that a person can be removed on a ground that was not a criticism he nal offense or an basis or removal at the time they engaged in that conduct. again, whether it is crime or not a crime. there is no constitutionally based right to notice and therefore the in the piece of the vagueness doctrine has far
less support. >> if the court holds that 16b is unconstitutionally vague in criminal cases, what would the impact of, in criminal cases involving the categorical approach, what would the implications of that be? >> as we site in our brief, there are a number of places in title 18 where the definition of crime of violence is used either by express reference to 16b or by use of the same formulation like 924c where the same formulation is used. >> what would be some of the most important examples? >> that would be one. 16b is incorporated into owe fens dealing with money-laundering. robbery be i believe. also used to determine whether a juvenile would be prosecuted --
>> doesn't that suggest that argument that the standards apply rather than the criminal one? losing some of its force for precisely that reason? >> it is important to recall that 16b is just a definition. an statement of crime onity own. a definition or identifying a category offenses that are then plugged in to some other statute. either criminal offense or immigration laws. immigration laws for example, identifying a category of crimes that are the constitute a ground for removal. just like the other aggravated felony provisions. >> but the point that chief justice is underscoring, is that p we go, if we base this decision on the fact that this is civil,ip we go, if we base t decision on the fact that this is civil,fp we go, if we base t decision on the fact that this is civil, we go, if we base thi decision on the fact that this is civil, -- >> that is true. and for that reason, the court may well want to --
>> that is true. and for that reason, the court may well want to and i've sustained 16b, because if it is sustained under the criminal standard as we clearly think it should be, then it would be constitutional in the -- >> what
do you think of the idea suggested in justice alito's opinion, that the word offense, just like the word crime, both are ambiguous, can refer to a category of behaviors that p.m. can't engage in. or this defendant engaged in on this particular instance. so he said, as i read it, let's back up. can't be done. congress thought in this state out and other statute it wouldn't be difficult to cat gerize all of the laws by their degree of risk of violence. can't be done. too many state criminal laws used in too many different ways. too many different words. no statistic are kept.
justice dent can't get them. so we are left guessing. so let's back up. and look at what this person did on this occasion. what is your reaction to that? >> we have not argued that. >> i just wanted to know what your reaction is. >> this
court's decision said the cat goral approach applies. if this court were to conclude that that this cannot be sustained under the criminal standard, that may be one option. it may be a particular option. >> we have to have it argued but i think if you get that, i just don't know if you have thought it through at the sg's office about the pros and cons. and in case you have done it, i would appreciate your telling us what you all think. even if you're not stuck with it. i know that's unusual. if you're stuck with it. i'm just curious. >> there are advantages in the sense that statute is preserved.
there could be questions about how it would be administered to determine what actually happened on the prior occasion. but one place where the court might want to consider reserving, if that were an issue, is 924c where the crime of violence is contemporaneous with the possession of the firearm and so you're not looking at a past offense. you're looking at overall offense in which the weapon was possessed. >> could i ask, just in thinking through your argument, it would help me get an example, so could you give me three examples, if there are that many, where we struggled under acca but where the answer is clear under 16b. so that i understand what kind of distinction you're drawing. >> i think dui is prime example. in a unanimous owe sigs, tdecise
court's only decision in it -- i think the sawed off shotgun which this court in torres says was not covered by 16b. and i believe that is correct. you don't have to use force in order to possess the shotgun. even though injury could result under the acca clause, perhaps. that's what is confusing under the acca clause. i think those are two prime examples. but 16b -- >> anything else? this is important for me tp trying to figure out what differences are. >> yes. and where the court formulated the extra test of, violence, aggressive conduct, it pointed out that some such limitation was also necessary because of
pollution offenses or product might be covered. so the court is juggling with the way the acca clause operates. there is no question those crimes are clearly excluded under the acca clause. on the other hand, some other crimes like kidnapping or escape, if one pictures those offenses, they clearly present a risk of physical force will be used and give this statute a core of valid applications that it can't be held unconstitutional on its face. >> the immigration judge also found that this qualifies as crimes of moral terpitude. and qualify as a crime of moral terpitude? >> it may. it may depend on the nature of
the offense. california burglary is not generic burglary as this court recognizes. if i might reserve. >> thank you, counsel. mr. rosen kranz? >> thank you. >> everyone agrees that they are both present here, it's hypothesizing the ordinary instance, ordinary case of a set of elements. and second then from that hypothesis estimating the degree of risk of some sort. as justice ginsburg points out, the government correctly back in johnson said that those two factors are in existence here in section 16b and that the residual clause here was quote
equally susceptible to challenge. >> there is something that isn't here mr. rosenkranz and that is a long history of struggling and failing to come up with interpretation. i'm wondering why you think we don't have that same history. i don't think there is any question that we would not have said what we said and johnson on the next case, and going back and forth and we struggled and up here we don't have any of that. it seems as though and not only with respect, and with respect to lower courts it seems that everybody is getting along just fine. and as much as i can't quite understand what the difference is, there just does seem to be a difference in practice. >> well, justice kagan, let me give two answers. the first is that this whole notion that the government is discussing about a different
experience with acca than with section 16b is revisionist history. every single acca case that this court decided was presented to this court in simultaneous serp tigss in the 16b contest. and within the 16b cases and this court and cross courts would question acca cases into 16b treating them equivalently. so this court's experience with the acca clause is its experience with section 16b and whole series of questions you asked justice kagan about, well, what about sykes? what about chambers? what about johnson itself? every single one of those cases is coming back here. we know they are are coming. sykes is already, that is the sykes issue, is presented as a circuit conflict right now in the lower courts.
it is royaling the lower courts. there is a fifth circuit case where the majority and descent of sykes are played out in the fifth circuit right few. the same will be true of all of those. and secondly, it is simply not true to say that everyone is getting along just fine in lower courts between our brief and national immigration project we have identified ten circuit splits. some of them on exactly identical elements. what is the problem with those cases? the courts on either side, it's not just that they are engaged in different elemental analysis. the courts on each side are fundamentally disagreeing about what the ordinary case of a particular crime is. >> what about the argument that 16b is more precise? for one thing, it is related to in the course of the omission of the offense.
and that the offender must be the one who uses the force and in addition it covers the force against the victim's property. so it has a says fpecificity of acca clause. >> let me start in the course of which took a lot of mr. kneedler's argument time. two things -- three things to say about it. first, courts have uniformly held that in the course of, does not entail a temporal limitation that it doesn't -- >> the word during the commission of -- is it in the course of during commission of -- >> in 16b. >> in 16b, the phrase the government is speaking of is in the course of committing the
offense. so to continue that first answer, in what justice kagan was asking about or possession offenses do create the risk. and appropriately so. because -- or let's take another example that consumed a lot of time today. burglary. justice kagan's question about burglary, noticeably that is why in laya cal, this court held that burglary was the classic example after example of a 16b violent crime. burglary, as this court said in johnson, it is completed the moment you cross the threshold. if all we are looking at is temporal, so when are the elements completed? entering with bad intent is what completes the elements. they can then ransack the
apartment for the next five hours, that is still in the course of committing the offense. second answer, the government's new interpretation does not change the fundamentally imaginary nature of the inquiry. no matter what. courts will still be imagining the ordinary case. only now you have to further imagine, in that ordinary case, when are the ordinance typically satisfy end finally that textural difference is not actually a textural difference. acca -- the acca residual clause says the same thing -- >> courts and legislatures always have to imagine consequences when they are classifying crimes. they have to define what burglary is because they know that in a significant number of cases, certain consequences are libel. that the way the law works. >> yes, of course your honor. if this were just to the
question that justice akwlelito asked mr. kneedler about, if this was just about importing 16b into definitions of various crimes, there is no vagueness problem. as this court said in johnson and addressed exactly that question in johnson, it is a totally different inquiry when you are alying the stated elements to an actual concrete exam that many is there before the court. >> mr. rosenkranz, can i ask you, suppose there was a statute that said that any person who commit a crime of moral terpitude in the district of columbia or within the special maritime or territorial jurisdiction of the united states shall be imprisoned for not more than 20 years, would that be unconstitutionally vague? >> your honor, it would certainly be problematic. and the reason it would be
problematic is because you don't have an administrative agency that then gives content to the moral terpitude language the way you do for example in the immigration context. and by wait, a the way which wh deference is owed. this is stat you'd, 16b, a criminal statute. >> that seems to me, i'm somewhat surprised by your answer. that seems to be by me at least as vague as 16b. and the whole thing with the jordan, that committed deportation for a person convicted of a crime of moral terpitude, satisfied the moral vagueness there. >> yes , justice alito. so today moral terpitude is a
phrase that the executive agency has defined people know what it means. they know what's in and they know what's out. >> i mean, unless you're willing to say that criminal statute that i hypothesized would satisfy vagueness standard, i don't see how you csay that the same vagueness standard applied in criminal cases and deportation cases. >> the same vagueness standard does apply in the two contexts. >> crime and statute making a crime of more -- saying anyone with a crime of moral terpitude sentenced up to 20 years, that would satisfy vagueness for criminal statute? >> in a vim ncriminal statute i would not because there is no history of agency interpretations to which courts must defer. let me back up for a moment. >> is dui a crime of moral terpitude? >> i have no idea. >> how about failure to file
income tax return? >> i mean, i don't know what the agency interpretations of moral turpitude are. >> how about entry into the united states? >> i think not. let me just back up. your honor has moved into the second issue. i just want to be clear that in our view and in the view of all of the lower courts, jordan settles the question on whether it's the same standard for criminal deportation. but this court does not have to embrace jordan or even address the question whether it is the same standard. 16b is a criminal statute. that congress chose to import whole sale into the immigration laws aep that has criminal applications even under the ina. >> john sop talks a lot about the confusion caused by the predicate offenses that were listed. in fact, in colorful terms
explained why those compounded the vagueness in the residual clause. of course you don't have those here. >> yes, your honor. i would start with where justice kennedy started. which is as a general matter, one does not ordinarily think that giving examples makes something more vague than it would otherwise be. i know this court spent a lot of time trying to draw lessons from those examples with varying, with actually no success and varying methodologies to try to narrow what is otherwise a vague statute. and the government's argument in johnson was that congress succeeded in narrowing with those enumerated elements, those enumerated crimes. and this court concluded that it didn't. but a statute that has examples even if they are cop fusing
example, has to be better than a statute that -- >> well, the statute as a whole might be because you can look at it and say there's one of the examples. but seems to me that argument doesn't respond to the point it make the residual clause much more confusing. if it is pointing in much more direction answers involving totally different consequences. ba ba basically what the court held in johnson. it is clear when you get to what is named and as the court explained makes it much more confusing in the residual clause. >> i think the easiest way to look at this, i would say, is if that, if that had been the pivotal factor in johnsonson -- >> johnson says there are two factors that con spared. on -- >> johnson says there are two factors that con spared.n -- >> johnson says there are two factors that con spared. -- >> johnson says there are two factors that con spared. if it had been indeed that other factor, what the court would have done is say we will now as
a matter of construction, stop trying to draw less yoons from those example answers not try to figure out whether those examples teach something about relationships. i think this court was very conscious of what it was doing when it said that there were two critical things that conspired, two critical elements that conspired to make the statute vague. then in welch when they court repeated whatity holding was,ity rational in johnson, it repeated those he same two critical elements. not the third one about the enumerated -- >> i see that.
the thing underlying this, public conveniencees a necessity and a hundred others and they are all civil. now what you suggest here is what you say is this, you say the constitution requires the creation of the administrative agency which will develop a tradition over time. that will clarify what will otherwise -- that kind of reasoning was present in the nondelegation doctrine. so what you want to say is that which would have saved a statute under the nondelegation doctrine, which is not fair delegation run, which gives meaning, is also necessary to save a statute from vagueness. that's a very interesting holding. i would rather read it in a letter viewing article than i
would write those words which will suddenly become real. i'm not -- do you see where i'm floating on this? i see your point is quite similar but i'm worried about the implications. >> let's talk about the implications in the immigration context to blin with. in the immigration context, that you are quoting justice breyer from -- >> mendoza. i'm happy to be confused with him. >> i confuse you all the time with him. to the extent of focussing within the immigration statute, that language has been interpreted. that is a key distinction between this case and moler, for example, with which mr. kneedler invoked.
maller was a situation in which congress today find the crimes that would make you deportable. and the problem was that the attorney general could then exercise discretion as to whether he would deport you or not. and it was couched in terms of delegation because it was prechevron and presector poultry. but the court said no. the fact that there is discretion doesn't bother us now. the second answer is in the immigration context as distinguished from perhaps any other context, you as justice sotomayor was saying, the imdwrags context in particular is a context that implicates liberty with the severis severe. so it is far apart from the public good sort of questions he and applications. >> mr. rosenkranz, i guess i would have thought your answer would have been different. i guess i would have thought
that -- whatever implications johnson had for vagueness doctrine, it has already had. and that all you're asking us to do is to essentially say this statute is no different frat statute we looked at in johnson and to write an opinion that basically just repeats jobson and whatever implications it's had or will have, it will have regardless. and he this opinion would do nothing more. >> thank you, jorn, yes. what she said.yjorn, yes. what she said.ojorn, yes. what she said.ujorn, yes. what she said.rjorn, yes. what she said. jorn, yes. what she said.hjorn, yes. what she said.ojorn, yes. what she said.nojorn, yes. what she said.rjorn, yes. what she said., yes. what she said. >> if that's your answer, it ignores this is not a criminal case. it is true that deportation has more severe consequences than the typical civil case. there are many other civil cases that can have a devastating impact on someone. such as child custody. loss of a professional license. complete destruction of business. loss of a home.
now assuming there is some sort of vagueness standard that applies in civil cases, i would have thought your answer would be that it's a sliding scale thaent standard for civil cases is not the same as standard for criminal cases but how much specificity is required depend on the severity of the consequences of the case. >> justice alito, this court and hoffman said it is a sliding scale. but in order an when it cajordan it came to deportation, which is described as the greatest sword of cons kwepequence, which dire is -- >> that's not exactly the way the court -- what the court said. or not necessary to read jordan that way.
we're going to apply the criminal standard here, and it satisfies the criminal standard. it didn't say assuming for the sake of argument but i think it can be read that way. if you don't read it that way, you're stuck with the conclusion that a statute making a crime of moral turpitude punishable by a felony term imimpros onment would satisfy a criminal statute, which i think is very difficult to defend. >> the first is that this court doesn't have to decide whether jordan equated criminal cases and civil cases with the most severe consequences because this is a criminal statute that this court is interpreting. and it has criminal consequences even as imported through the ina. >> would you say the same thing
if it didn't -- if this statute did not incorporate something involved in criminal statutes and has a purely -- >> so referenced it a definition that also applies in criminal cases. >> i would have a different argument. but let me be clear, this court would say and it said in ab small, it took a statute held unconstitutional and this is back in 1924, '25, a statute this court found uncons fusional in the criminal context, then applied to a silly breach of contract case applied as defense and this court said no. when we struck it over there, we're going to strike civil ramifications here as well. this court could adopt a very narrow healeding saying when what congress has done is to make the decision to import a criminal statute into a civil context. it brings the soil with the
roots. and there's no such thing as -- it is actually incoherent. >> i don't think that makes the slightest bit of sense. a statute that says it is a felony to charge an unjust rate. and then the -- there was a civil statute that incorporated that and we would say well because you can't make it a felony to charge and unjust rate or price. you can't have that in the civil statute. you can't incorporate it into the civil statute. >> your honor with you just recite et the fact of ab small. it was struck in the criminal context. then imported as defense in civil context and this court said in ab small, we don't care whether it was civil or criminal. if it was struck there w, we wi strike it there. and there was separation of powers to do this. congress could have used different word and revised the
statute. but think of it in the rico context. take the classic case the court decided. a court couldn't then in a civil rico case adopt that same standard, say that is the predicate crime, and impose troubled damages. it would be incoherent to tell the lower courts that what you do is take a statute that would be unconstitutional there and import it into the civil context and uphold it. let me give you a practical reason on the facts of this case. so in this case, mr. dimaya get deported on the ground that the statute is sufficiently clear and he is an aggravated felon. he comes back to the out the next day and can be -- and will be prosecuted as an aggravated felon. as anning aricated felon, there is a different standard and he
can't be prosecuted. it would make no sense to have a scheme using the same statutory definition, meaning something in one context as this court would hold hypothetically in it case but in the 16b context or in the context of the definition of a crime means something else. >> what do you do with -- one thing is clear. the court did say that burglary is the cons mate crime that fits within 16b.u mate crime that fits within 16b.mate crime thats within 16b. >> well, two things that stated, and cal -- i mean, burglary was not before this court. first, this is california burli burglary. which is very important. it is held from a normal burglary. california burglary can be committed by being invited into someone's home with the intention of selling them fraudulent security.
that is an actual case applied that way. >> that's why this case didn't work under 16 a and elements. right? >> that's correct, your honor. and you bring me to another point that is important. mr. kneedler never answered justice kagan's question about what 16b means. where the space is between the elements clause and residual clause. i'm actually having trouble coming up with an example of a situation of a scenario in which a crime does not satisfy the elements clause because there is no element that requires the use or threat or attempt to use force but on the other hand quote unquote bity nature requires the use of force the moment you finished
satisfying -- >> he says burglary is that. >> burglary can't be that. burglary is committed the moment you cross the threshold. in california it doesn't have to be a -- even if you cross the threshold legally. >> something along the lines of yes, it's true that element of burglary do not have the use of force, but if we look back to the historic understanding of burglary what we find is a long standing concern with exactly that subject. in other word, thatbu burglary wouldn't have been defined as it was, wouldn't have been prosecuted as it was, except for this fear of the use of force. i don't know. that's the best can i do with it. he will tell me if he can do better. >> i capital can't do any bette. sound like the mischief when you
put on top of it op elemethe el r risk. >> ab small holds that in the contempt of there having been earlier case that struck those words down in the criminal context. so what is the principle of law -- >> the principle of law that ab small stand for that i was arguing principally is that the principle of law that when the court strikes statute that congress made the decision to impose criminal and civil consequences to, that statute is gone and you don't start preserving the civil consequences to it. because congress made the decision and we just follow congresss direction. i do want to close with one last point which is about the practical consequences of this ruling.
first, i already said, in the criminal context, the prak tig al consequences are very limited because as this court observed in johnson, practically all of 16b is applied to a set of facts. then the question becomes, what is -- in light of the notion that this court has not decided a lot of 16b cases, should this court try to engage in the same exercise in the 16b context that was a failure in the acca time context? snrs but in deciding whether to take that route this court has to decide what is to be gained by that enterprise. the enterprise of setting lower courts adrift and of considering the risks of the use of force from statutes that do not have use of force as an element.
at some point this court is going to have to decide whether it's had enough. and it is not like we don't know where this case is headed. where this inquiry is headed. justice kagan unveiled all of the next sets of questions. they all coming here. we have seen he this show before. we know how it end. so the court may as well save itself and the lower courts the grief of trying to -- well, what's coming here? you said the lower court are confused and there are splits developing. what? >> sykes is headed to this court. after sykes will be a james reduks. if you look at the list of examples of cirque yut conflicts, they are all coming here. >> national geographic spree sites other contexts. this court will be joy of
whelmed with the exercise of trying to figure out what ordinary case of each of those thousands of statutes is, just as it was overwhelmed and finally gave up the exercise in johnson. so we know that it's coming. we know where it's going to end. this court should end it here and end it now. thank you your honors. >> thank you, counsel. mr. kneedler, three minutes. >> thank you, mr. clehief justi. first we explain in opening brief and reply brief there is not the disarray that there was with respect to the acca residual clause. this court considered one case -- >> mr. kneedler, that's if you concentrate on us. but i did read the respondent brief and other brief and it seems like a a reduks sykes and reduks james and many issues. >> as i explained in the briefs
within the conflicts we address there can be explained in the differences of state statute. that's what you have to apply, statutory standard of creating a risk to particular state statute. as we explain, the context is largely that. but if i could go on, laocal is the only case the court considered and the court considered it clear that dui was inning with -- burglary was in and dui was out. that because of the textural differents between this statute and that one. it requires not some injuryown the road but until force actually being piepsd a risk of physical fours actually being used. ? >> there were some arguing in the drunk driving test that minute you get behind the car, drunk, you are using a lethal weapon, a car, to inflict injury
on others. that argument was still being made and some courts below bought it. >> but the important point is this court clarified it so say it is a category of active vie leapt crimes. risk of physical force or actual physical force under 16a, again, burglary, this court said and burglary is a continuing offense. while you may not be able to prosecute somebody for burglary the moment they enter, this generic burglary includes remaining in the house. this court said, it's not made up and this court said, burglary is included because bity nature there is risk that the burglar will use force in committing the crime. same thing is true with kidnapping. the risk of force is that he will try to escape and you have to use physical force. i don't think the court can see, it can look at what state staut u is driving at and apply the
standard. many student have civil and criminal applications. but that doesn't mean private litigant can envoc the law standard. ab small when the court got to civil context said there is no intelligible standard which is a more relaxed standard. finally on immigration, immigration is invested in an administrative agency. so there is always intervening action by the executive. even in the situation where the agency may not get deference, there is still a centralized control over bringing of the cases and board of immigration appeals can say, this is it, this is in. the court will only see cases where the bia sustains removal. but that has a way of limit willing and giving notice to people. with respect to -- sorry. >> thank one counsel. case is submitted. >> next week, nomination for rex
tillerson for secretary of state. chuck schumer announced opposition. the debate will be at 5:00 eastern with vote to move nomination forward at 5:30. you can watch senate live monday on c-span 2. and start of 115th congress brought dozens of new lawmakers to washington, d.c. and we recently caught up with one of them. >> rep doesn'ting illinois tenth district, this is not the first time, you're not new to washington, what was the experience like the first time around in 2013. >> it was an extraordinary experience. i said it was the highest honor, greatest responsibility i could of have representing the people he who sent me to washington to reflect their values and priorities. a wonderful opportunity. we had anc